Metro Media Entertainment, LLC v. Does 1 - 47

Filing 67

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/14/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
METRO MEDIA ENTERTAINMENT, LLC
:
v.

:

Civil Action No. DKC 12-0347

:
RICHARD STEINRUCK
:
MEMORANDUM OPINION
Presently
copyright

pending

and

infringement

ready

action

for
are

resolution
motions

to

in

this

dismiss

counterclaim and for sanctions filed by Plaintiff Metro Media
Entertainment, LLC.

(ECF No. 29).

The issues are fully briefed

and the court now rules pursuant to Local Rule 105.6, no hearing
being deemed necessary.

For the reasons that follow, the motion

to dismiss will be granted and the motion for sanctions will be
denied.
I.

Background
Plaintiff Metro Media Entertainment, LLC, commenced this

action on February 6, 2012, by filing a complaint against fortyseven

Doe

defendants

alleged

to

have

infringed

Plaintiff’s

copyright in a pornographic film by downloading and/or uploading
the video over the Internet via a file-sharing protocol known as
BitTorrent.

As set forth in a spate of recent opinions in this

court and others across the country, this technology functions
as follows:
BitTorrent facilitates the sharing of large
amounts
of
data
across
“Peer-to-Peer”
networks on the [I]nternet.
To begin, an
initial user decides to share a file (known
as a “seed”) with a torrent network. Other
users (known as “peers”) within the network
then
connect
to
the
seed
file
for
downloading.
Each peer downloads one piece
of the seed file at a time.
As a piece of
the seed file is downloaded, it is typically
made available to other peers to download.
In other words, every downloader is also an
uploader.
Thus, as the process continues,
peers may receive pieces of the seed file
from those who have already downloaded that
piece and not necessarily from the initial
seeder.
This system of multiple pieces of
data coming from various peers is called a
“swarm.”
With respect to any particular
swarm, an alphanumeric representation (known
as a “hash”) of the shared file remains the
same.
A hash is essentially a “forensic
digital
fingerprint”
that
identifies
a
particular copy of a shared file.
Third Degree Films, Inc. v. Does 1-108, No. DKC 11-3007, 2012 WL
1514807, at *1 (D.Md. Apr. 27, 2012) (internal footnotes and
citations omitted).
Through this process, each of the “peers” participating in
a given “swarm” exposes his or her Internet Protocol address
(“IP address”) to the outside world.

The owners of copyrights

in films such as My Baby Got Back! #44 – the subject of the
instant

case

–

retain

the

services

of

law

firms

or

investigators, such as the Copyright Enforcement Group, LLC –

2

the firm retained by the instant plaintiff – to monitor and
record the information revealed by the infringers.

Typically, a

lawsuit is then filed against all swarm participants believed to
be located within the jurisdiction of a given court, along with
a request for early discovery in which the plaintiff seeks to
serve

subpoenas

on

Internet

Service

Providers

(“ISPs”)

associated with the alleged infringers in order to learn the
identity of subscribers.1

Once this information is obtained, an

offer of settlement invariably follows in which the plaintiff
advises the subscriber of the infringing IP address that he or
she may avoid the specter of having his or her name publicly
associated with the unauthorized downloading of pornography by
promptly

remitting

a

substantial

payment

to

counsel

for

the

plaintiff.

1

A number of courts have recognized a distinction between
the subscribers of the IP addresses associated with the
infringing activity and the infringers themselves.
See, e.g.,
Discount Video Center, Inc. v. Does 1-29, --- F.R.D. ----, 2012
WL 3308997, at *3 (D.Mass 2012) (“While ultimately the Plaintiff
may determine that a meaningful number of the subscribers are
also the infringing Defendants, the Plaintiff does not now know
that to be the case, as to any individual subscriber, nor will
it know that simply as a result of having received the names and
addresses of the subscribers.”).
These courts have found that
obtaining the name of a subscriber from an ISP is merely “the
first step in the Plaintiff’s effort to determine the identity
of the infringer,” id. at *5, and have required additional
evidence before an amended complaint providing the names of
alleged infringers may be filed. Others, including this court,
have permitted the plaintiff to name the subscribers as
defendants, subject to ultimate proof that the subscribers are,
in fact, the infringers.
3

Recognizing the practical difficulties presented by joining
so many defendants in a single lawsuit, as well as “the risk of
extortionate settlement, especially when joinder is being used
to that end,” Third Degree Films, 2012 WL 1514807, at *4 (citing
SBO

Pictures,

Inc.

6002620,

at

*4

district

have

v.

Does

(N.D.Cal.
severed

1-3036,
Nov.

the

No.

30,

11-4220

2011)),

defendants

in

SC,

courts
these

dismissed without prejudice all except Doe 1.

2011
in

WL

this

cases

and

Moreover, with

respect to the remaining defendants, this court directed that
future filings containing identifying information be made under
seal.

Thus, in theory, the risk of extortionate settlement was

substantially
have

abated,

otherwise

embarrassment

felt

or

as

the

remaining

compelled

reputational

to

defendants,

settle

harm,

were

in

order

free

to

who

might

to

avoid

appear

to

defend the suits without having to reveal their identities, at
least initially.
So it was, in the instant case, that the court issued a sua
sponte order on May 7, 2012, severing the forty-seven defendants
named in the complaint and dismissing all except Doe 1, further
directing that “all documents filed in this action that contain
Doe

1’s

identifying

(ECF No. 17, at 2).

information

shall

be

filed

under

seal.”

Days later, Plaintiff’s counsel transmitted

a settlement offer to the sole remaining defendant, advising, in
part:
4

Discovery was authorized by the United
States federal district court in the aboveidentified case relating to the identities
of the subscribers whose [I]nternet accounts
were allegedly used to download from and/or
make available on the Internet unauthorized
copies of [My Baby Got Back! #44] in
violation of the U.S. Copyright Act (17
U.S.C. §§ 101 et seq.
You were identified
as one of those subscribers.
(ECF

No.

23-3).

After

observing

that

17

U.S.C.

§

504(c)

authorizes statutory damages of up to $150,000 for a willful
violation,

Plaintiff’s

counsel

stated,

“[o]n

behalf

of

Plaintiff, we will formally name you as a defendant (i.e., as an
alleged infringer of Plaintiff’s copyright in [My Baby Got Back!
#44]),” unless a proposed “settlement offer” of $3,500.00 was
promptly remitted.
Doe

(Id.).

1,

by

counsel,

counterclaim

in

which

responded

he

publicly

Defendant Richard Steinruck.

by

filing

revealed

(ECF No. 23).

an

his

answer

and

identity

as

After emphatically

denying any involvement with the downloading or uploading of
Plaintiff’s
Plaintiff

film,
is

Defendant

taking

alleges

advantage

of

in
“an

his

counterclaim

opportunity

to

that
reap

undeserved and illegal rewards and to convert [its] copyrighted
materials into a cash generating resource . . . by extorting
money from those who have done no illegal act, but who cannot
risk

the

downloading

opprobrium

of

pornography.”

being

falsely

(Id.

5

at

¶

accused
37).

of

illegally

According

to

Defendant, “[t]he key allegations [contained in the complaint
and request for early discovery] used to convince the [c]ourt to
authorize the issuance of the subpoena [to Defendant’s ISP] were
false and Plaintiff misled the [c]ourt in order to further its
scheme.”

(Id. at ¶ 41).

Defendant characterizes Plaintiff’s

subsequent settlement offer as an “extortive shakedown letter,”
which

“effectively

threatened

that

unless

Mr.

Steinruck

paid

Plaintiff the money demanded . . . [Plaintiff] would make public
the identity of John Doe 1 – Mr. Steinruck – as a downloader,
copier,

and

[c]omplaint.”

distributor
(Id.

at

of
¶

pornography

45).

In

by

litigating

Defendant’s

view,

the
these

“actions . . . constitute[] abuse of process under Maryland
state law, as well as abuse of process under federal law[,] . .
. [and] may also constitute contempt of this [c]ourt, for using
[] [c]ourt process to attempt to accomplish an illegal purpose.”
(Id. at ¶ 48 (internal citation omitted)).2

2

While the counterclaim purports to raise a claim of abuse
of process under federal common law, the parties cite no
authority for the proposition that such a cause of action is
even cognizable.
Indeed, it appears that it is not.
See
A.H.D.C. v. City of Fresno, No. CIV-F-97-5498 OWW, 2004 WL
5866234, at *13 (E.D.Cal. Oct. 1, 2004) (“there is no federal
common law abuse of process” (quoting Adena, Inc. v. Cohn, No.
00-3041, 2001 U.S. Dist. LEXIS 19186 (E.D.Pa. Nov. 26, 2001);
Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963)). It is unclear,
moreover, whether Defendant intended to raise a counterclaim for
civil contempt, but the equivocal assertion that unspecified
conduct “may also constitute contempt” is insufficient to state
a plausible claim.
Thus, the court construes Defendant’s
6

In light of Defendant’s self-disclosure, the court issued
an order directing “[a]ny interested party . . . to show cause
by August 8, 2012, why Doe 1’s identifying information should
remain sealed or redacted from public view.”
response,

Mr.

Steinruck

“acknowledge[d]

(ECF No. 24).

that

by

In

filing

his

Answer and Counterclaim disclosing his identity he has waived
confidentiality

and

sealing

of

any

documents

in

counterclaim

this

by

case.”

(ECF No. 27).
Plaintiff

responded

to

the

filing

the

pending motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6),
and

seeking

complaint,

sanctions
pursuant

related

to

28

to

the

U.S.C.

§

filing
1927.

of

a

frivolous

(ECF

No.

29).

Defendant has opposed both motions (ECF No. 31), and Plaintiff
has filed papers in reply (ECF No. 32).
II.

Motion to Dismiss
A.
A

Standard of Review
motion

pursuant

to

Federal

Rule

of

Civil

12(b)(6) tests the sufficiency of the complaint.

Procedure
Presley v.

City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A

complaint need only satisfy the standard of Rule 8(a), which
requires a “short and plain statement of the claim showing that
the

pleader

is

entitled

to

relief.”

Fed.R.Civ.P.

8(a)(2).

counterclaim as raising a single count of abuse of process under
Maryland law.
7

“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket
assertion,

of

entitlement

to

relief.”

Bell

Twombly, 550 U.S. 544, 555 n. 3 (2007).

Atl.

Corp.

v.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion [s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, the court must consider all well-pleaded
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the

light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th

Cir.

1993)).

The

court

unsupported legal allegations.

need

not,

however,

accept

Revene v. Charles Cnty. Comm’rs,

882 F.2d 870, 873 (4th Cir. 1979).

Nor must it agree with legal

conclusions couched as factual allegations, Iqbal, 556 U.S. at
678, or conclusory factual allegations devoid of any reference
to actual events, United Black Firefighters v. Hirst, 604 F.2d
844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).

“[W]here the well-pleaded facts

do not permit the court to infer more than the mere possibility
of

misconduct,

the

complaint

has

alleged,

but

it

‘show[n] . . . that the pleader is entitled to relief.’”
8

has

not

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

8(a)(2)).

Thus,

“[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”
B.

Id.
Analysis

Under Maryland law, an action for abuse of process provides
a remedy “for those cases ‘in which legal procedure has been set
in motion in proper form, with probable cause, and even with
ultimate

success,

but

nevertheless

has

been

perverted

to

accomplish an ulterior purpose for which it was not designed.’”
One Thousand Fleet Limited Partnership v. Guerriero, 346 Md. 29,
38 (1997) (quoting W. Keeton, Prosser & Keeton on the Law of
Torts § 121, at 897 (5th ed. 1984)).

To state a claim for abuse

of civil process, the plaintiff must set forth facts which, if
proven, would establish:
[F]irst, that the defendant willfully used
process after it has issued in a manner not
contemplated by law, Keys [v. Chrysler
Credit Corp., 303 Md. 397, 411 (1985)];
second, that the defendant acted to satisfy
an ulterior motive; and third, that damages
resulted from the defendant’s perverted use
of process, Berman [v. Karvounis, 308 Md.
259, 262 (1987)].
Id.3

3

As will be explained, a claim for abuse
process does not require a showing of damages.
9

of

criminal

The key distinction between abuse of process, on the one
hand, and malicious use of process and/or malicious prosecution,
on the other, is that “the gist of the tort is not commencing an
action or causing process to issue without justification, but
misusing, or misapplying process justified in itself for an end
other than that which it was designed to accomplish.”

Wood v.

Palmer Ford, Inc., 47 Md.App. 692, 705 (1981) (quoting Prosser,
Law of Torts 856 (4th ed. 1971)).

“[T]here is, in other words, a

form of extortion, and it is what is done in the course of
negotiation, rather than the issuance or any formal use of the
process itself, which constitutes the tort.”

Palmer Ford, Inc.

v. Wood, 298 Md. 484, 512 (1984) (quoting Prosser, supra, at
857).

If a party invoking civil or criminal process is “content

to use the particular machinery of the law for the immediate
purpose for which it was intended, he is not ordinarily liable,
notwithstanding a vicious or vindictive motive.”

Id.

“But the

moment he attempts to attain some collateral objective, outside
the scope of the operation of the process employed, a tort has
been consummated.”
The

Id. at 512-13.

proper

analysis

of

an

abuse

of

process

claim,

therefore, involves a comparison between the lawful purpose for
which the process in question was intended and the improper
purpose

for

which

purpose

usually

it

takes

was
the

actually
form
10

employed.
of

coercion

“The
to

improper
obtain

a

collateral advantage, not properly involved in the proceeding
itself, such as the surrender of property or the payment of
money, by the use of the process as a threat or club.”

Wood, 47

Md.App. at 706-07 (quoting Prosser, supra, at 857).

Thus, in

Zablonsky v. Perkins, 230 Md. 365, 370 (1963), the Court of
Appeals

of

Maryland

liability

for

attempted

to

affirmed

abuse
use

of

the

collection agency.”

the

process

State’s

trial

where

criminal

court’s

“the

finding

defendant

process

as

a

.

of
.

.

private

Similarly, in Palmer Ford, 298 Md. at 511,

a viable abuse of process claim was based on evidence showing
that “it was the purpose of Palmer Ford . . . to use [] criminal
proceedings to effect collection of the amount claimed from Wood
for

repairs

involves

the

to

his

abuse

car.”
of

While

criminal

the

tort

process,

most

frequently

liability

premised on the misuse of civil process as well.

may

be

“A cause of

action for civil abuse of process,” however, “requires that the
plaintiff establish that an arrest of the person or a seizure of
property of the plaintiff resulted from the abuse of process.”
One

Thousand

Fleet,

346

Md.

at

45

(citing

Bartlett

v.

Christhilf, 69 Md. 219, 231 (1888)); see also Krashes v. White,
275 Md. 549, 555 (1975) (“Unlike a plaintiff in a malicious use
of civil process suit, the plaintiff in a criminal malicious
prosecution action need not prove any special damages, such as
arrest or seizure of property.”).
11

Given these parameters, Defendant’s abuse of process claim
cannot be sustained.

Initially, insofar as Defendant complains

about the untoward purposes and methods employed by Plaintiff in
bringing this suit, his counterclaim sounds as one for malicious
use of process, rather than abuse of process.

As the court

explained in One Thousand Fleet, 346 Md. at 39-40:
The case of Keys v. Chrysler Credit
Corporation, 303 Md. 397, 494 A.2d 200
(1985), illustrates the differences between
malicious use of process and abuse of
process.
In Keys, Anna Keys’s wages were
attached by a writ of garnishment issued to
enforce a judgment that Keys had fully
satisfied more than four years earlier. Id.
at 400, 494 A.2d at 201. . . . Keys sued
Chrysler Credit for, inter alia, malicious
use of process and abuse of process. Id. at
402, 494 A.2d at 202.
Judge McAuliffe,
writing for the Court, concluded that the
trial court improperly dismissed Keys’s
malicious use of process claim because a
prior civil proceeding had been instituted
by Chrysler Credit against Keys, that the
proceeding was instituted without probable
cause inasmuch as Chrysler admitted that
Keys had fully paid the judgment, that
malice may be inferred from a want of
probable cause, that the proceeding was
terminated in Keys’s favor, and that Keys
suffered a seizure of her property, i.e.,
the garnished wages.
Id. at 408-10, 494
A.2d at 205-07.
The Court held, however,
that Keys could not maintain an action for
abuse of process because there was no
evidence of any improper use or perversion
of the process after it issued.
The Court
noted that Keys’s “proper complaint in this
case is with the issuance of the process, .
. . and she has no proper proof of an abuse
of process.”
Id. at 412, 494 A.2d at 207

12

(emphasis added). Thus, an action for abuse
of process could not survive.
(Emphasis

and

second

Defendant

alleges

complaint

“used

alteration

that
to

the

“key

convince

in

original).

allegations”

the

[c]ourt

to

As

of

noted,

Plaintiff’s

authorize

the

issuance of the subpoena were false” and designed to “mis[lead]
the [c]ourt in order to further [Plaintiff’s] scheme.”
23 ¶ 41).

(ECF No.

An abuse of process claim does not concern whether a

complaint was brought, or any court process was issued, in good
faith or based on sufficient cause.

Allegations such as these

could only be actionable as malicious use of process, which
requires, inter alia, that the prior proceeding was “terminated
in favor of the plaintiff.”
Because

the

instant

case

One Thousand Fleet, 346 Md. at 37.4
has

not

terminated,

much

less

terminated in favor of Defendant, such a claim could not be
viable here.
The

only

facts

set

forth

by

Defendant

that

could

potentially support an abuse of process claim relate to the
4

Under Maryland law, a cause of action for malicious use of
process has five elements: (1) a prior civil proceeding was
instituted by the defendant; (2) that proceeding was instituted
without probable cause (i.e., “a reasonable ground for belief in
the existence of such state of facts as would warrant
institution of the suit or proceeding complained of”); (3) the
prior proceeding was instituted by the defendant with malice
(i.e., “the party instituting proceedings was actuated by an
improper motive”); (4) the proceedings terminated in favor of
the plaintiff; and (5) a “special injury” resulted that “would
not necessarily result in all suits prosecuted to recover for a
like cause of action.” One Thousand Fleet, 346 Md. at 37.
13

issuance of the subpoena to Defendant’s ISP and the ensuing
settlement letter transmitted by Plaintiff.

The lawful purpose

of the subpoena was to compel the ISP to divulge Defendant’s
name and address, which, in turn, would enable Plaintiff to file
an amended complaint naming the proper defendants and requesting
the issuance of summonses.

While the fact that Plaintiff also

used that information to convey a settlement offer is clearly
“outside

the

scope”

of

the

subpoena,

the

purpose

of

the

settlement letter was not “to attain some collateral objective.”
Palmer Ford, 298 Md. at 512-13.
the suit.
shakedown
would

The only threat contained in Plaintiff’s “extortive
letter,”

“formally

declined

Indeed, it proposed to resolve

to

as

name

Defendant
[Mr.

settle.

calls

Steinruck]

(ECF

No.

it,
as

a

23-3).

is

that

Plaintiff

defendant”

if

Insofar

as

he

this

constitutes a “threat,” it is no different from those routinely
presented in demand letters to potential defendants prior to the
filing of law suits in court.

While it is likely true, given

the salacious nature of the film, that Plaintiff had substantial
leverage in settlement discussions, there is nothing wrong with
presenting

a

defendant

with

a

settlement

offer

prior

to

proceeding with litigation, and the fact that Plaintiff may have
had

an

ulterior

process analysis.

motive

is

inconsequential

in

the

abuse

of

See Wallace v. Mercantile County Bank, 514

F.Supp.2d 776, 793 (D.Md. 2007) (“[n]o liability is incurred
14

where

the

defendant

has

done

nothing

more

than

pursue

the

lawsuit to its authorized conclusion regardless of how evil his
motive

may

be”)

(quoting

(internal marks omitted)).

One

Thousand

Fleet,

346

Md.

at

38

Moreover, Defendant has not suffered

an “arrest or a seizure of property,” as required to establish a
claim

of

abuse

of

civil

process

Thousand Fleet, 346 Md. at 48.

under

Maryland

law.

One

To the extent that he has

suffered reputational harm from the association of his name with
the unauthorized downloading and/or uploading of pornography,
his injury was self-inflicted.

A procedure was put in place by

which Defendant could have vindicated his vehement denials of
liability without publicly revealing his identity.

He elected

to reveal his name, however, and he cannot now reasonably assert
that

damages

attributable

to

this

revelation

were

caused

by

Plaintiff.
In sum, the facts presented in the counterclaim do not
support a cause of action for abuse of process.

Accordingly,

Plaintiff’s motion to dismiss will be granted.
III. Motion for Sanctions
Observing
advanced

that

virtually

Defendant’s
identical

counsel

counterclaims

has
in

unsuccessfully
other

courts,

Plaintiff alleges that the instant counterclaim is frivolous and
that attorneys’ fees and costs associated with litigating the
motion to dismiss should be awarded pursuant to 28 U.S.C. §
15

1927.

Section 1927 provides that “[a]ny attorney . . . who so

multiplies

the

proceedings

in

any

case

unreasonably

and

vexatiously may be required by the court to satisfy personally
the

excess

incurred

costs,

because

expenses,
of

such

and

attorneys’

conduct.”

fees

“Courts

reasonably

have

imposed

sanctions under this section only when there is a clear showing
of bad faith: ‘when the attorney’s actions are so completely
without merit as to require the conclusion that they must have
been taken for some improper purpose such as delay.’”

Dobkin v.

Johns Hopkins University, Civ. No. HAR 93-2228, 1995 WL 167802,
at *2 (D.Md. Mar. 24, 1995) (citing Oliveri v. Thompson, 803
F.2d 1265, 1273 (2nd Cir. 1986)).
The instant record does not reflect that Defendant filed
his counterclaim in bad faith.
motives

of

documented,
certain

plaintiffs
and

in

several

circumstances,

suits
courts

an

Issues with the methods and
of

this

have

actionable

nature

suggested
claim

could

are

well-

that,

under

be

viable.

See, e.g., Third Degree Films v. Does 1-47, --- F.R.D. ----,
2012 WL 4498911, at *1 (D.Mass. Oct. 2, 2012) (“it appears that
in at least some of these cases, adult film companies may be
misusing

the

subpoena

powers

of

the

court,

seeking

the

identities of the Doe defendants solely to facilitate demand
letters

and

coerce

settlement,

rather

than

ultimately

serve

process and litigate the claims”); Raw Films, Ltd. v. Does 1-32,
16

No. 3:11cv532-JAG, 2011 WL 6182025, at *2 (E.D.Va. Oct. 5, 2011)
(“The plaintiffs seemingly have no interest in litigating the
cases, but rather simply have used the Court and its subpoena
powers to obtain sufficient information to shake down the John
Does”).

The fact that some courts have dismissed counterclaims

does not necessarily mean that similar claims presented in other
cases are frivolous.5
1927

aims

only

at

In any event, “[t]he unambiguous text of §
attorneys

who

multiply

proceedings”;

this

provision “focuses on the conduct of the litigation and not on
its merits.”
1999)

DeBauche v. Trani, 191 F.3d 499, 511 (4th Cir.

(emphasis

finding

that

proceedings.

in

original).

defense

Here,

counsel

there

unreasonably

is

no

basis

multiplied

for
the

Accordingly, Plaintiff’s motion for sanctions will

be denied.

5

Plaintiff attaches to its motion the transcript of a
proceeding in the United States District Court for the District
of Columbia in which an abuse of process counterclaim raised by
Defendant’s counsel was dismissed.
(ECF No. 29-3).
According
to Plaintiff, the transcript “speaks for itself” with regard to
that court’s finding that the claim was frivolous. (ECF No. 291, at 6).
To the contrary, the transcript reveals that the
court simply found that the facts presented did not support
liability in that case.
While the court later found that
counsel offered a “frivolous excuse” with respect to a different
motion (id. at 11), he made no such finding with regard to the
defendant’s counterclaim.
Indeed, the plaintiff’s motion for
sanctions related to that filing was denied.
17

IV.

Conclusion
For the foregoing reasons, Plaintiff’s motion to dismiss

counterclaim will be granted and its motion for sanctions will
be denied.

A separate order will follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

18